VCAT Decides on Garden Area
There has been considerable debate of the meaning of the Garden Area provisions of the Planning Scheme.
In the absence of any detailed guidance from the Department of Environment, Land, Water and Planning (DELWP), practitioners and others have been awaiting decisions from the Victorian Civil and Administrative Tribunal (VCAT) to provide guidance.
Two recent decisions have been released, which provide an interpretation of some of the more contentious aspects of the provision. These decisions are:
- Guler v Brimbank CC (Red Dot)  VCAT 646; and
- Sargentson v Campaspe SC (Red Dot)  VCAT 710
How is Garden Area defined in the Planning Scheme?
Garden Area is defined at Clause 72 of the scheme as follows:
An uncovered outdoor area of a dwelling or residential building normally associated with a garden. It includes open entertaining areas, decks, lawns, garden beds, swimming pools, tennis courts and the like. It does not include a driveway, any area set aside for car parking, any building or roofed area and any area that has a dimension of less than 1 metre.
Member Halliday’s decision, in Guler v Brimbank CC (Red Dot)  VCAT 646, provides an interpretation of the ‘minimum garden area requirement’ (MGAR) and has important implications for future permit applicants when calculating the minimum garden area.
Guler considered whether the areas underneath eaves and extended roofline should be considered ‘uncovered outdoor areas’ or ‘roofed areas’. This distinction is critical in determining whether this space can be included as part of the garden area calculation.
Member Halliday considered the purpose of the garden area and concluded that the MGAR is to ensure there is enough open space around the dwelling footprint and to provide open space for planting. The Member relied on the ordinary meanings for the terms:
- ‘Outdoor uncovered area’ – a space which is open to the air, having no cover; and
- ‘Roofed area’ – open space which is covered by the external upper covering of a building.
In this case, the Member concluded that the eaves formed an extended part of the roofline. In the context of the ordinary definition, the Tribunal considered this formed a roofed area and cannot be calculated as part of the garden area.
In Sargentson v Campaspe SC (Red Dot)  VCAT 710, Member Whitney considered what can be included and excluded from the garden area calculation. The Member relied on the ordinary meaning of terms to be considered:
- ‘Ground Level’ – at the natural level of the site;
- ‘Outdoor’ – occurring or used in the open air;
- ‘Uncovered’ – having no cover or covering;
- ‘Roofed area’ - external upper covering of a house or other building; and
- ‘Garden’ – a plot of ground devoted to the cultivation of useful or ornamental plants.
The Member considered the purpose of the provision and considered that the requirement is to ensure that a lot retains a minimum percentage of garden area which is uncovered space, that is either as a garden or an area that is associated with a garden, in order to contribute to a perception of openness or space around the built form when viewed from the outside.
The Member’s analysis carefully considered what can be included and excluded in a garden area calculation. Any space that is outdoor, uncovered, clear to the sky, and normally associated with a garden, can be included in the calculation of garden area. Spaces which are associated with a garden area can include entertaining decks, swimming pools and tennis courts.
Alternatively, any space which is a driveway, set aside for parking, a building or roofed area or any space that is less than 1 metre is excluded from the garden area definition. This decision is generally consistent with the Tribunal’s reasoning in Guler, which found that eaves which overhang and form a part of a roofline cannot be included in the garden area requirement.
At Glossop Town Planning we pride ourselves on our ability to deliver smart and effective planning solutions. Please note that this is general information only, is not advice and should not be relied upon for specific projects.
If you would like further information on these VCAT decisions or have any queries with your project, please contact the Glossop team on (03) 9329 2288.
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The latest interpretation of the words ‘creating or altering’ access to a Road Zone Category 1 at VCAT
The latest interpretation of the words ‘creating or altering’ access to a Road Zone Category 1 at VCAT
President Gibson’s decision in Peninsula Blue Developments Pty Ltd v Frankston CC, resulted in significant ramifications for planning permit applications involving abutting land in a Road Zone Category 1.
The hearing was particularly significant in relation to the interpretation of ‘Clause 52.29 Land Adjacent to a Road Zone Category 1 or a Public Acquisition Overlay for a Category 1 Road’.
The Deputy President interpreted the phrase to ‘create or alter access’ as:
- Any physical change to the opportunity for traffic to approach or enter a road in a Road Zone Category 1. This includes creation of a new access, alteration to an existing access or removal of an existing access. It may involve new buildings and works or alteration to existing works or development, such as creating a new opening or gate in a fence or closing an existing gate or opening.
- Any change to the use or development of land that may result in changes to the opportunity for traffic to approach or enter a road in a Road Zone Category 1 in terms of the volume, frequency or type of traffic whether this is more or less than the existing situation.
In effect, Peninsula Blue Developments resulted in more proposals triggering a planning permit under Clause 52.29 and as a consequence, more matters were referred to VicRoads. It also resulted in a change to the way in which proponents typically treated traffic generated by a new development (even where the access itself was not physically altered).
In D'Agostino v Greater Shepparton CC  VCAT 1355, another division of the Tribunal seemed to take a different view to Peninsula Blue Developments.
In D’Agostino, Senior Member Wright QC held:
- The first point to note is that in the Peninsula Blue Developments case the land in question was not directly accessed from a Road Zone Category 1, and so clause 52.29 did not apply. This means that what the Tribunal said was dicta, which lessens the authority of the decision as establishing a point of principle.
- Secondly, it is well established that like other instruments of a legislative character a planning scheme must be construed in accordance with the ordinary and everyday meaning of the words used. In the case of clause 52.29 the phrase “create or alter” clearly contemplates a physical change to the access. The gloss suggested by the second limb of the Tribunal’s conclusion in Peninsula Blue Developments extends this to a change or alteration to the use of the land served by the access. It reads into the provision words that are simply not there. The circumstances do not justify this imposition.
- For these reasons the Tribunal is not satisfied that the allegation of a breach of clause 52.29 can be made out.
It will be interesting to see how other divisions of the Tribunal respond to the findings in D’Agostino.
To find out the implications of these decisions on your proposal, call or email us today! firstname.lastname@example.org
How Many Pigeons Can a Pigeon Keeper Keep?
It is not spelt out in any Planning Scheme (that we are aware of). But planners should be aware that a planning permit is required to keep more than 100 racing pigeons on a residential property (in most cases). This just needs to be remembered.
Why is a permit required? In P490/2007 & P219/2007, the Tribunal found that the keeping of 100 racing pigeons on the land, in association with the use of the land for the purpose of a dwelling, constituted a hobby and was ancillary to the dwelling use. The Tribunal has since followed this reasoning in a number of decisions concerning keeping of homing pigeons. For instance, in Black v Stonnington CC  VCAT 1659 the Tribunal said: Clause 62 of the Planning Scheme states that no permit is required to keep various animals including birds if they comprise part of the usual domestic activities of a dwelling. Notwithstanding that clause, the Tribunal has found that keeping more than 100 pigeons comprises an activity that is more intensive than being ancillary to a dwelling. It constitutes a separate use (animal husbandry).
Why keep pigeons? Pigeon racing is a long established sport in Victoria and elsewhere. Pigeon racing enthusiasts optimise the breeding, housing, feeding and training of pigeons for the best chances of racing success. If you want to know more about pigeon racing, the various industry websites provide a wealth of information.
Design responses on duplex or paired dwelling sites
Are there any implications for design responses on sites that are part of a duplex or pair of buildings?
On occasions, the Tribunal is called to consider this very question. Recently, in Ebeyer v Yarra CC  VCAT 213, the Tribunal said [19-21]:
In D’Andrea v Boroondara CC  VCAT 1430, the Tribunal considered an application for a double storey addition to one of a pair of Victorian dwellings. In that decision the Tribunal discussed the difficulties in constructing additions to Victorian matched pairs:
Successful extensions and alterations to single storey ‘duplex’ style dwellings are generally much harder to achieve than extensions and alterations to single dwellings, particularly where there is a desire to add a double storey to just one of the attached dwellings. It is usually the case that duplex dwellings were designed, constructed and appear from the street as one dwelling. Even though they may have two driveways and two entrances, they have a symmetry or balance that can easily be lost if a double storey section is added to just one of the dwellings. Although that symmetry can also be lost with ground floor additions, it is less likely to occur provided the changes are not at the front of the dwelling.
In this case the situation is further complicated by the fact that the building was originally one building. Whilst it has been two dwellings for a considerable period of time, I find that the original building always read as a single built form. In my view it is not necessary for additions to the dwelling at 19 to identically match the footprint, style and design of those at 17 Brighton Street. This would be very difficult to achieve, if not impossible, as 19 Brighton Street does not have the benefit of two street frontages and has three sensitive interfaces to the adjoining dwellings. However, any addition to the dwelling should ensure that the form of the original Victorian building is read as such.
By intruding into the original roof form, the proposal before me fails to achieve an acceptable distinction between the old and new built form and fails to respect the symmetry of the original building.
It is possible to distinguish these comments of the Tribunal from decisions involving buildings that are not afforded heritage protection under the Scheme. For example, in Rae v Boroondara CC  VCAT 354, the Tribunal considered a similar question on a site without heritage protection and said :
The fact that the existing house can be demolished and is not afforded any specific protection under the planning scheme is a relevant consideration. Whilst I agree with the Council and the neighbours that the site and No. 33 have a symmetry, there is nothing to prevent the loss of this symmetry. Indeed, this has already happened to the attached pair at No. 23 and 25, as No. 23 now has a contemporary streetscape appearance.
In our view, a paired building on the adjoining site will always be a feature which design should respond to. However, the weight that design response should place on achieving ‘symmetry’ will depend on individual circumstances.
Please feel free to contact my office if you would like to discuss design options on your property.
When is a north facing window within 3 metres of a boundary on an abutting lot?
Practitioners will be familiar with Standard B20 at Clause 55.04-4 which states:
If a north-facing habitable room window of an existing dwelling is within 3 metres of a boundary on an abutting lot, a building should be setback from the boundary 1 metre, plus 0.6 metres for every metre of height over 3.6 metres up to 6.9 metres, plus 1 metre for every metre of height over 6.9 metres, for a distance of 3 metres from the edge of each side of the window. A north-facing window is a window with an axis perpendicular to its surface oriented north 20 degrees west to north 30 degrees east.
In Laliotis v Darebin CC  VCAT 751, the Tribunal had to decide whether a north facing window setback 3m from the boundary was “within 3m” for the purpose of the Standard B20 assessment. The Tribunal followed the reasoning of the then President of VCAT in Jurkic v Manningham CC  VCAT 2515where the following was said:
She suggested that a distance of 3 metres was not “within 3 metres”. During argument I observed that a window which was 2.999999999 metres from a boundary would be “within 3 metres”, and that it would be usual to express such a distance as 3 metres. Hence, from a practical point of view where windows are specified as being 3 metres from the boundary, they should be regarded as being “within 3 metres”.
Given the Tribunal’s finding on this matter, we recommend that applicants ensure the feature and level survey accurately dimensions the setback of north facing windows from boundaries on abutting lots. That is because the difference between a setback of 2.99m and 3.01m is significant when it comes to applying Standard B20.
Selecting a site for development
In my role as Director of Glossop, clients frequently ask me to give them a quick answer to “how many townhouses can I fit on this site” or “how many apartments does the planning scheme allow”. I see cases where owners have purchased sites on the premise that a particular site area equates to a required dwelling yield or worse “the neighbour did it so I can do it too”.
These approaches rarely (if ever) provide reliable estimates of development potential.
I cannot emphasise enough the importance of a thorough due diligence process before purchasing a site. A site inspection, having a meeting with Council and getting good legal advice are always important before purchase.
My office specialises in planning advice for developers, architects and building designers on the development potential of sites. In my experience, there is no “one size fits all approach” to estimate likely development outcomes for a given site. Assessment of development potential requires experience, insight and a rigorous analysis of planning controls and the physical context of the land.
For a multi-dwelling project, planning considerations often include:
- What are the planning controls, required planning permissions and relevant decision criteria to obtain planning approval?
- Are there any registered restrictive covenants or encumbrances on title that could influence a site's development potential? Your legal advisor should be involved in checking the land title and explaining the impact of these on the site.
- What are the mandatory and discretionary decision criteria (such as zones, overlays and policy) that guide use, density and building envelopes?
- How accessible is the site to facilities and services such as public transport, commercial facilities and public open space? Generally, sites that are closer to facilities and services receive stronger policy support for increased housing (but not always).
- To what extent does the planning scheme encourage a change to the area’s current character. How consistent is the area’s existing character? In locations where the planning scheme expects an area’s existing character to change substantially over time, it is rarely appropriate for new development to respect the existing character. Instead, new development should respond to the future character of the area. Locations which have a diverse existing character often provide greater scope for design options.
- What are the relevant planning controls for nearby land and what impact do they have on development of the site?
- Does the site share a boundary with properties that are sensitive to new development? What constraints do these properties have on a site's development potential? For instance, be aware that the planning scheme requires new development to be setback from neighbouring north facing habitable room windows within 3 metres of the boundary (such as living rooms and bedrooms) and backyards. Once we know the features of the neighbouring sites, we are in a position to estimate a new building's footprint.
- What are the influences of the features of the site and surrounding are on new development (such as dimensions, easements, services, solar orientation, vegetation and slope)? It is important to confirm the physical features with a site inspection.
- What are the options for vehicle access?
I also recommend that clients engage an architect or building designer to provide some concept sketches to see how a development might be laid out and then get our advice to also review those assumptions.
In my experience, the planning controls and features of the site and area significantly impact on development potential. My office has extensive experience reviewing and advising on these matters and facilitating meetings with Council. I have provided an example of a site layout below that responds well to its contexts.
For further information regarding development potential of sites, please feel free to contact us.
Should basements be included in site coverage?
Planning Practice Note 27: Understanding the Residential Development Standards was recently updated in June 2015.
In relation to the site coverage standards (A5 and B8), the Practice Note now indicates that site coverage ...does not include an underground basement that is constructed wholly underground.
We endorse the approach to exclude only underground basements from site coverage calculations. In our view, underground basements have little (if any) impact on the area’s character and this approach supports the objective of Clause 55.03-3: to ensure that the site coverage respects the existing or preferred neighbourhood character and responds to the features of the site.
We also take this opportunity to note that PN27 provides further guidance in relation to the site coverage calculations, in that:
The definition of a building includes a dwelling, a garage or carport, a veranda and any other roofed building such as a garden shed. When calculating site coverage, if the upper storey projects over the ground floor, that part of the upper storey is also added to the ground floor area…
Outdoor paving, driveways, footpaths or building eaves are not included when calculating the amount of site coverage.
A copy of Practice Note 27 (updated June 2015) can be accessed via the Department of Transport, Planning and Local Infrustructure.
If you have a question regarding site coverage, please feel free to contact us.